Purpose

These guidelines set out the policies and processes for a small business in dispute with another business or government agency to access ASBFEO’s Legal Support Service. 

About the small business dispute help service

Legal advice is available to eligible small businesses under the Legal Support Service (the service). Access to the service may be offered to eligible small businesses at 2 separate stages of the dispute resolution process. 

While there is no guarantee the service will resolve the matter, legal advice is provided to maximise a small business’ opportunity to understand and resolve their matter without having to go to court.   

Eligibility

Access to the service is through our assistance function that helps with dispute resolution via case management. Access is determined after considering the matters circumstances in relation to section 68 of the Australian Small Business and Family Enterprise Ombudsman Act 2015. 

Who is eligible?

To be eligible for consideration to access the service: 

• the entity must be a small business in accordance with the definition of a small business under the Australian Small Business and Family Enterprise Ombudsman Act 2015 i.e. fewer than 100 employees or revenue of less than $5m in the previous financial year
• the entity must not be legally represented
• the entity must be seeking dispute resolution in relation to a relevant action under section 65 of the Australian Small Business and Family Enterprise Ombudsman Act 2015 or relevant industry code of practice
• the entity must have lodged the matter with the ASBFEO via an online webform (or otherwise as agreed)
• the matter must be actively managed by an ASBFEO case manager
• we are of the view that the matter may benefit from an alternative dispute resolution (ADR) process to help reach a resolution or that the small business would otherwise benefit from legal support to identify/clarify issues or understand possible next steps towards resolving their dispute.

In determining whether a matter would benefit from ADR, we may take into consideration all relevant factors that may include: 

• whether both parties have expressed a willingness to participate in an ADR process to resolve their dispute 
• the length of time parties has been in dispute and any attempts that they have made to resolve it
• the value of the dispute 
• other actions of the parties, including indications that the parties are dealing with each other in good faith and whether the matter may be considered to be frivolous or vexatious 
• taking all relevant factors into account, whether ADR may be an efficient and effective way to resolve the dispute. 

Who is not eligible?

A small business is not eligible for the service if any of the following apply: 

• the request for assistance could have been made to another agency of the Commonwealth, State or Territory and that the request could be more conveniently or effectively dealt with by the other agency 
• the small business has legal representation 
• the small business dispute is with an individual in their personal capacity (i.e. not in respect of a business that they operated) 
• the small business is seeking dispute resolution for a matter that does not relate to a relevant action under the Australian Small Business and Family Enterprise Ombudsman Act 2015 or relevant industry code of practice. 

Operation of the service

Access to the service is by selection through case management by us and is subject to the availability of funding. 

We will work with the small business through self-help options, and if these are unsuccessful, we may contact the other party to clarify issues and seek their views. There will be a period of correspondence with us. 

 If during this time, we form the view that the matter may benefit from an ADR process or the small business would otherwise benefit from legal support to identify/clarify issues or understand possible next steps towards resolving their dispute and the small business meets the other eligibility criteria, we may offer to refer the small business for Stage 1 Preliminary Legal Advice. 

If we are satisfied that issues have been identified and clarified, the matter may benefit from an ADR process, and the small business meets the eligibility criteria, we may refer the small business for Stage 2 Pre-ADR Advice to receive strategic advice and assistance to prepare for an ADR process.   

Not all matters will be subject to both stages. We will advise whether a matter should proceed directly to Stage 2, taking into consideration whether the issues have been identified and clarified. This includes industry code matters where the other party has been notified of the issues in dispute through a Notice of Dispute.  

While 2 hours of specialist legal support will generally be offered for matters that proceed directly to Stage 2, we may offer up to 4 hours where this is beneficial given the nature of the dispute. 

If both parties in a dispute meet the eligibility criteria, we may provide both parties with access to Stage 1 and/or Stage 2 of the service. 

Scope of legal advice

Specialist legal support is available to unrepresented small businesses at up to 2 stages of the dispute resolution process as follows: 

Stage 1 (2 hours Preliminary Advice) 

If the matter is referred to Stage 1 Preliminary Advice, the ASBFEO case manager will access our list of legal practitioners and identify a shortlist of suitable legal practitioners from its panel. The shortlist will largely be based on specialisation in relevant areas of law. The small business will be asked to review the shortlist of legal practitioners and provide an order of preference. 

We will issue a work order referring the matter to a preferred specialist legal practitioner, subject to any conflicts of interest or other reasons for the specialist legal practitioner not accepting the matter. 

The specialist legal practitioner will provide 2 hours of service to the small business which may include reviewing documents, discussing the matter with the small business and providing a summary email. Subject to the consent of the small business, the legal practitioner will also provide information to us about the issues that may be considered at ADR and whether they believe the matter would benefit from proceeding to ADR (and the type of ADR best suited). 

The total time that the legal practitioner will allocate to the matter is 2 hours. This will include reviewing relevant documents, the consultation with the small business and a follow up email. 

The consultation will assist the small business to identify and clarify the issues in dispute and determine relevant material that may support resolution of the matter.

The consultation will be undertaken within 5-10 business days of receipt of the referral or as or as otherwise agreed with the small business.

The advice should provide the small business with what options might be available and whether ADR may be an appropriate way to attempt to resolve the dispute. 

Stage 2 (2 hours Pre-ADR Advice) 

If after Stage 1 Preliminary Advice, a small business proceeds to a facilitated ADR process recommended by us or we advise that a matter should proceed directly to Stage 2, or ADR is required by an Industry Code, the Ombudsman, may offer Stage 2 Pre-ADR Advice from the same specialist legal practitioner or another legal practitioner. We will follow the steps outlined in Stage 1 to make the offer of the legal practitioner.  

At this consultation, the specialist legal practitioner will provide strategic advice to assist the small business to prepare for the ADR process. This will include helping the small business prepare documentation, understand what to expect during ADR, identify the outcomes that the small business is seeking, discuss negotiation options and adopt a resolution mindset.  

If the specialist legal practitioner did not provide Stage 1 (2 hours Preliminary Advice) to the small business, this service will also include reviewing any relevant documents. 

The total time that the legal practitioner will allocate to the matter is 2 hours. This will include reviewing relevant documents, the consultation with the small business and any follow up email. 

If Stage 1 was not accessed, we may authorise the provision of 4 hours where we conclude this is beneficial given the nature of the dispute.   

The consultation will ideally be undertaken within 5-10 business days of receipt of the referral or as or as otherwise agreed with the small business.   

Payment

Stage 1 Preliminary Advice: A co-payment of $100 is required from the small business. It must be paid by the small business directly to the legal practitioner, and we will pay the balance of the cost directly to the legal practitioner. 

Stage 2 Pre-ADR Advice: Generally, no co-payment is required from the small business at the time of the second consultation. The cost will be covered by us. However, if the matter proceeds directly to ADR, such as for a Code related matter where the issues have already been identified in a Notice of Dispute and/or where Stage 1 Preliminary Advice has not been required, the small business is required to pay the legal practitioner a co-payment of $100, with the balance of the cost to be paid us. We will advise this at the time of engagement. 

The service does not include the provision of legal support by the specialist legal practitioner if the matter proceeds to ADR. The small business may independently engage the support of any legal practitioner for this process, and the small business will be solely responsible for the cost of any legal representation or further legal advice. 

Complaints

Feedback or complaints related to ASBFEO’s Legal Support Service may be directed to: 

Dr Craig Latham, Executive Director

Phone:      02 5114 6100

Email:        craig.latham@asbfeo.gov.au